LARRY WITTERS, PETITIONER V. WASHINGTON DEPARTMENT OF SERVICES FOR
THE BLIND
No. 84-1070
In the Supreme Court of the United States
October Term, 1984
On Writ of Certiorari to the Supreme Court of the State of
Washington
Brief for the United States as Amicus Curiae Supporting Petitioner
TABLE OF CONTENTS
Interest of the United States
Statement
Summary of argument
Argument:
The Establishment Clause does not prevent a state
from providing vocational rehabilitation benefits to
a blind college student eligible under religiously
neutral criteria where the student intends to use
those benefits to pursue a church-oriented career
A. The history surrounding the enactment and
early interpretation of the Establishment Clause
demonstrates that neutral assistance to education
is not unconstitutional
B. When, for secular purposes, the government
provides financial aid to individuals on a facially
neutral basis, the individuals' use of that aid
for religious ends or in religious contexts does
not constitute an establishment
C. The court below erred in its "primary effects"
analysis by focusing on the religious use in
isolation rather than on the full context of the
program
D. This Court need not, and should not, consider
the remaining issues in the case
Conclusion
QUESTION PRESENTED
The United States will address the following question:
Whether the Establishment Clause requires a State to deny financial
assistance for the education of a blind person who is otherwise
eligible for such assistance under the State's vocational
rehabilitation program solely because the handicapped applicant
intends to use that assistance to study for a church-oriented career.
INTEREST OF THE UNITED STATES
This case involves the Washington State Department of Services for
the Blind's denial of vocational rehabilitation benefits to petitioner
Larry Witters, a blind person who is otherwise eligible to receive
such benefits from the State, solely because of his intention to use
those benefits to pursue a college-level curriculum that would prepare
him for a church-oriented career. The Department's decision was
upheld by the Supreme Court of the State of Washington on the ground
that to grant petitioner benefits under these circumstances would
violate the Establistment Clause of the First Amendment, as applied to
the states through the Fourteenth Amendment. Noting that petitioner
is not "pursuing a secular course of study with the personal objective
of becoming a minister," but that the curriculum for his course of
study "includes classes in Old and New Testament studies and church
administration" (Pet. App. A10), the court held that "(i)t is not the
role of the state to pay for the religious education of future
ministers" (ibid.).
The interest of the United States in the matter arises because
under several major federal programs of long standing, administered by
the Veterans' Administration and the Department of Education, the
federal government provides financial assistance to students pursuing
higher education in preparation for church-oriented careers. The
position of the United States, as expressed by Congress in the statute
establishing one of these programs, is that the proper governmental
criterion is whether the course of study will assist the beneficiary
"in attaining an educational, professional, or vocational objective at
any educational institution * * * selected by the (beneficiary), which
will accept and retain the (beneficiary), as a student or trainee in
any field or branch of knowledge which such institution finds the
(beneficiary) qualified to undertake or pursue." 38 U.S.C. 1670
(emphasis added). It is not the role of the government, under these
programs, to condition the availability of these benefits on the
student's selection of a secular career.
The Veterans' Administration (VA) administers a widely-known
educational assistance program, popularly called the "GI Bill," and
similar programs under which the government provides directly to
qualified veterans or dependents a sum of money to be used at their
discretion for subsistence, tuition, and other costs of obtaining
higher education. See 38 U.S.C. 1500-1521, 1601-1643, 1651-1693, and
1700-1766. /1/ In each of these programs, the beneficiary is
permitted to select his own school and course of study from among
courses and institutions approved for VA purposes by state approving
agencies. See 38 U.S.C. 1770-1780; 38 C.F.R. 21.4200-21.4280. The
VA is prohibited by law from exercising any supervision or control
over either the educational institutions or the state approving
agencies involved. 38 U.S.C. 1782. The Veterans' Administration has
long provided educational benefits to students pursuing a recognized
educational objective that may lead to the ministry. See, e.g.,
Department of Veterans Benefits Information Bulletin, IB 7-76, at 5
(1954); Program Guide Section M-25, at 21-1 (July 2, 1980).
The Department of Education also administers major programs under
which higher education students receive grants or loans to defray the
costs of education at institutions of their choice, in preparation for
careers of their choice. See 20 U.S.C. 1070a, 34 C.F.R.Pt. 690 (Pell
Grant program); 20 U.S.C. 1070b et seq., 34 C.F.R. Pt. 676
(Supplemental Educational Opportunity Grant program); 20 U.S.C. 1070c
et seq., 34 C.F.R.Pt. 692 (State Student Incentive Grant program); 20
U.S.C. 1071 et seq., 34 C.F.R.Pt. 682 (Guaranteed Student Loan
program); 20 U.S.C. 1078-2, 34 C.F.R.Pt. 683 (Parent Loans for
Undergraduate Students program); 20 U.S.C. 1087aa et seq., 34
C.F.R.Pt. 674 (National Direct Student Loan program); 42 U.S.C. 2751
et seq., 34 C.F.R.Pt. 675 (College Work-Study and Job Location and
Development program). Under each of these programs, the student may
attend essentially any institution of higher education accredited by a
recognized national or state accrediting agency. See 34 C.F.R.
668.2(a)(5). There is no prohibition in these programs against a
student using the federal financial assistance to attend a divinity
school or a similar school to train to be a minister, and students
have used federal assistance for these purposes. Indeed, among the
recognized national accrediting agencies are the American Association
of Bible Colleges, the Rabbinical and Talmudic Education Association
of Advanced Rabbinical and Talmudic Schools, and the Association of
Theological Schools in the United States and Canada. 49 Fed.Reg.
1275-1277 (1984).
The vocational rehabilitation program at issue here is itself a
federally assisted program (Pet. App. C2). Although the record does
not so reveal, the program would appear to be funded under the
Rehabilitation Act of 1973, 29 U.S.C. 720 et seq., which provides
grants to states "to meet the current and future needs of handicapped
individuals, so that such individuals may prepare for and engage in
gainful employment to the extent of their capabilities" (29 U.S.C.
720(a)). Under this program, a designated state agency prepares and
implements a plan for the provision of services in accordance with the
statutory purposes and federal program requirements. Respondent
Washington State Department of Services for the Blind is a designated
state agency eligible to receive funds under this program, and has
been chosen to use at least a portion of the funds to provide
financial assistance to eligible persons for vocational training.
Whether petitioner satisfies the federal eligibility requirements has
not been addressed in this litigation, and we express no view on the
matter. It is the view of the Department of Education, however, that
-- insofar as federal law is concerned -- assistance to individual
handicapped persons under this program may be used for any course of
study that will promote the goal of preparing the person for gainful
employment, without restriction to secular employment. See note 11,
infra.
The decision of the court below, if not reversed, would therefore
have a substantial impact on major federal programs, including the
program under which this case apparently arose. The United States has
a compelling interest in presenting its views in this case, toward the
end of ensuring that GI Bill and other educational benefits continue
to be provided to students on a neutral basis, without distinctions on
the basis of religious content or the religious character of the
student's choice of career.
STATEMENT
Petitioner Larry Witters, a college student, is blind. He is
eligible for vocational assistance under Wash. Rev. Code Ann. Section
74.16.181 (1982) (Pet. App. A2-A3, C2), revised and recodified in
pertinent part as Wash. Rev. Code Ann. Sections 74.18.130, 74.18.140
(Supp. 1985), which established a vocational rehabilitation program
administered by respondent, the State Department of Services for the
Blind, /2/ and funded by a combination of federal (80%) and state
(20%) monies (Pet. App. C2). Petitioner was enrolled in a three-year
Bible diploma course at the Inland Empire School of the Bible in
Spokane, Washington -- a private, nondenominational Christian college
(Pet. 6) -- when he first sought financial assistance from the
Department (Pet. App. A3, C2-C3). He later changed to a four-year
program that would also lead to a bachelor of arts degree from
Whitworth College (id. at A3, C3), a private, accredited Presbyterian
school (Pet. 6). /3/ Petitioner's purpose in pursuing this course of
study was to prepare himself for a position as a pastor, missionary,
or church youth director (Pet. App. A1-A2, A9, C3). The curriculum
for this course of study included classes in the Bible, church
administration, ethics, and speech (id. at A10, C3-C4).
Respondent Department of Services for the Blind denied petitioner's
application for financial assistance because of its view that "'(t)he
Washington Constitution forbids the use of public funds to assist an
individual in the pursuit of a career or degree in theology or related
areas'" (Pet. App. C4, quoting Department policy statement; see also
id. at A2). Respondent's denial was upheld on administrative review
(id. at E1-E, F1-F7) as well as on judicial review in the state
Superior Court (id. at C1-C9, D1-D37). Petitioner then appealed to
the state Court of Appeals, which certified the case to the state
Supreme Court. At each stage in the ligitation, respondent based its
position on the state constitution, and at no stage in the litigation
did respondent contend that to grant the benefits to petitioner would
violate the federal constitution.
The Supreme Court of the State of Washington, by a divided vote,
affirmed respondent's decision to deny financial assistance to
petitioner, but the court based its decision on the Establishment
Clause of the First Amendment -- not on the state constitution (Pet.
App. A2). Applying the three-part test of Lemon v. Kurtzman, 403 U.S.
602, 612-613 (1971), the state Supreme Court concluded, first, that
the state vocational assistance program had a secular purpose. The
court held that the purpose stated in Wash. Rev. Code Ann. Section
74.16.181 (1982) -- "to assist visually handicapped persons to
overcome vocational handicaps and to obtain the maximum degree of
self-support and self-care" -- demonstrates that "this statute has a
valid secular legislative purpose" (Pet. App. A7). Turning to the
second part of the Lemon test, however, the court concluded that "the
principal or primary effect of the aid sought by (petitioner) would be
to advance religion" (Pet. App. A10). It reached this conclusion by
focusing "on the particular aid sought by the (petitioner)" rather
than on the vocational rehabilitation program as a whole (id. at A8).
Finally, the court concluded that the record did not provide an
"adequate factual basis" for determining whether the provision of aid
to petitioner would entail "excessive entanglement," and that the
"'entanglement' inquiry is ill-suited to this case" (id. at A12).
In addition, the court below rejected petitioner's claim that the
denial of assistance under these circumstances infringed his rights
under the Free Exercise Clause of the First Amendment (Pet. App.
A14-A16) and indicated that it was unnecessary to address his
Fourteenth Amendment Equal Protection Clause claim (Pet. App.
A16-A17).
SUMMARY OF ARGUMENT
The federal government has long provided financial assistance, in
the form of scholarships, grants, loans, and work-study jobs, to
students in higher education, and has permitted them to choose (from
among a diverse and compendious list of institutions accredited on a
neutral educational basis) their place of study and vocational
objective. Some students (we know not how many) have used this
assistance to obtain training for a religious career. The Supreme
Court of the State of Washington, however, has held that the
Establishment Clause requires the government to exclude such students
from assistance programs otherwise available. According to the court,
it is not the proper "role" of government to pay for the "religious
education of future ministers" (Pet. App. A10).
We submit that this decision is erroneous. The constitutionality
of a neutral program of assistance to a broad class of beneficiaries,
selected without regard to religion, has never been questioned by this
Court. Nor should it be. The consequence of the holding of the
Washington court would be to require the government to single out
religious practice for disfavored status, to deny individuals equal
treatment under government assistance programs for no reason other
than their intended religious vocation. It would convert the First
Amendment into an instrument of hostility to religion, rather than a
protector of free religious exercise; an instrument of secular
conformity, rather than a catalyst for greater diversity, pluralism,
and individual choice.
The history of the adoption and early interpretation of the
Establishment Clause shows that the original intention was not to
deprive religion or religious individuals of benefits bestowed by the
government. Rather, the framers intended the First Amendment to
guarantee religious liberty by preventing the federal government from
placing its imprimatur of approval on any particular religious sect or
sects. The early practice in the area of government-supported
education is particularly instructive: both Congress and the states
frequently provided assistance to schools, whether they were public or
private, religious or nonreligious.
Recent decisions of this Court have found many forms of direct
assistance to religious institutions, including schools, troublesome
because of the twin problems of avoiding an appearance of government
endorsement of or involvement with the religious denomination involved
and preventing intrusive methods of avoiding such appearances. No
hard and fast rules have evolved in this difficult area. However,
when government assistance has been provided not to the institutions,
but to individual students and their parents, this Court has concluded
that -- so long as the assistance is provided neutrally to a broad
spectrum of citizens -- it is "not readily subject to challenge under
the Establishment Clause." Mueller v. Allen, 463 U.S. 388, 399 (1983).
The instant case falls into this latter category. The aid is
provided not to religious institutions, but to a broad class of
persons (the blind), selected on a neutral basis, without regard to
religion. Under this Court's precedents, the Washington vocational
rehabilitation program is constitutional.
The principal error of the Washington Supreme Court was in
evaluating the "primary effect" of the rehabilitation program on the
basis of this particular instance -- the requested aid for petitioner
Witters to study for the ministry -- rather than looking to the
program as a whole. Such an approach inevitably leads to a conclusion
that the effect is predominantly religious; it makes a neutral
program appear partial. Evaluated in its full context, the program
neither advances nor inhibits religious practice. The Establishment
Clause holding of the Washington Supreme Court should therefore be
reversed.
Other questions raised in the petition are premature. The only
issue addressed by the Washington Supreme Court was the federal
Establishment Clause; state law issues remain to be decided.
Although, as petitioner points out, adverse decisions on those state
law issues could well give rise to further federal constitutional
questions (and federal statutory questions as well), this Court should
not reach out to decide those questions in the present posture of the
case.
ARGUMENT
THE ESTABLISHMENT CLAUSE DOES NOT PREVENT A STATE FROM PROVIDING
VOCATIONAL REHABILITATION BENEFITS TO A BLIND COLLEGE STUDENT ELIGIBLE
UNDER RELIGIOUSLY NEUTRAL CRITERIA WHERE THE STUDENT INTENDS TO USE
THOSE BENEFITS TO PURSUE A CHURCH-ORIENTED CAREER
Respondent, the Washington State Department of Services for the
Blind, with federal financial assistance, has embarked on a program of
assisting blind persons "to overcome vocational handicaps and to
obtain the maximum degree of self-support and self-care." Wash. Rev.
Code Ann. Section 74.16.181 (1982). Respondent provides, among other
forms of assistance, tuition reimbursement for vocational education.
The choice of vocation, and the choice of educational institution, is
left to the individuals involved.
Petitioner Witters is blind, and it is undisputed that he is
eligible for assistance under this program. He has chosen to study
for a career as a pastor, missionary, or religious education director.
It is not contended that such a career falls outside the purposes for
which the Washington program is established; a career in the ministry
would enable petitioner to overcome vocational handicaps and to
support himself. Nonetheless, petitioner has been denied the benefits
to which he is entitled under the program. The sole reason for the
denial of these benefits, under the holding of the state Supreme
Court, is that to grant them would violate the Establishment Clause of
the First Amendment.
We believe that the court below has committed a basic analytical
error in its application of the three-part test of Lemon v. Kurtzman,
403 U.S. 602 (1971), to the facts of this case. We will discuss that
error in detail below. But first, we wish to stand back from the
detailed doctrinal analysis of this case to pose the fundamental
question: whether, "in reality," the provision of educational
assistance to a blind college student choosing to pursue a
church-oriented career, in common with other handicapped persons
pursuing careers of their choice, "establishes a religion or religious
faith, or tends to do so." Lynch v. Donnelly, No. 82-1256 (Mar. 5,
1984), slip op. 8-9.
A. The History Surrounding The Enactment And Early Interpretation Of
The Establishment Clause Demonstrates That Neutral Assistance To
Education Is Not Unconstitutional
James Madison, author of the draft of the Establishment Clause
first introduced in Congress, explained on the floor of the House of
Representatives that "the object it was intended to prevent" was that
"one sect might obtain a pre-eminence, or two combine together, and
establish a religion to which they would compel others to conform." 1
Annals of Cong. 731 (J. Gales ed. 1789). /4/ Almost fifty years
later, Joseph Story, perhaps the leading commentator on the
Constitution in the early days of the Republic, explained in a similar
vein, "The real object of the (First) Amendment was * * * to prevent
any national ecclesiastical establishment, which should give to an
hierarchy the exclusive patronage of the national government." 3 J.
Story, Commentaries on the Constitution of the United States 728
(1833), quoted in Lynch v. Donnelly, slip op. 9. Similar
interpretations were offered during this period by a unanimous Supreme
Court in Terrett v. Taylor, 13 U.S. (9 Cranch) 43, 48-49 (1815)
(concerning the Virginia disestablishment), and the Judiciary
Committee of the Senate in S. Rep. 376, 32d Cong., 1st Sess. 1 (1853).
The Establishment Clause was not thought to prohibit neutral aid to
education, religious as well as nonreligious. During the first half
century under the Constitution, Congress frequently made land grants
for the support of education, including schools operated by religious
denominations. /5/ See C. Antieau, A. Downey & E. Roberts, Freedom
From Federal Establishment 163-164 (1964). Congress made grants of
land in 1832 and 1833 to two denominational colleges in the District
of Columbia -- Columbia College and Georgetown College. Not until
1845 did Congress, for the first time, limit the use of land set aside
for schools to "public schools." Ibid. States having disestablishment
laws of their own similarly supported religious as well as
nonreligious education. Id. at 165, 168. One historian has commented
that "it was a very common thing indeed for the civil authorities in
the states which pretended to give free education only to pauper
children, to pay the tuition of such children in denominational
schools." E. Reisner, Nationalism and Education Since 1789, at 364
(1922). The overriding principle was (in this Court's later words)
that "one religious denomination cannot be officially preferred over
another." Larson v. Valente, 456 U.S. 228, 244 (1982).
The fear of a "national ecclesiastical establishment" may be remote
at this juncture in our history; however, it is as vital today as it
was at the founding to ensure that the power, resources, and prestige
of the government not be turned to the services of a religious sect or
combination of sects. The point of the Establishment Clause is not to
exclude religious institutions or individuals from the benefits our
society provides, but to guarantee that the government does not confer
the "'imprimatur of State approval'" on any particular religion, or on
religion generally. Mueller v. Allen, 463 U.S. at 399; Widmar v.
Vincent, 454 U.S. 263, 274 (1981); see Lynch v. Donnelly, No. 82-1256
(Mar. 5, 1984) (O'Connor, J., concurring). /6/ As the Court stated in
Walz v. Tax Commission, 397 U.S. 664, 669 (1970), the "basic purpose"
of the Religion Clauses "is to insure that no religion be sponsored or
favored, none commanded, and none inhibited."
To allow individuals to receive the benefit of facially neutral
government programs, even where the individuals have a religious
purpose or calling, does not signal government approval for their
religion, but shows a wholesome "benevolent neutrality which will
permit religious exercise to exist without sponsorship and without
interference." Walz, 397 U.S. at 669; see McDaniel v. Paty, 435 U.S.
618, 638-639 (1978) (Brennan, J., concurring). It no more "advances"
the cause of a religion to assist petitioner Witters, like other
handicapped citizens of the State of Washington, to obtain training
for the career of his choice than it does to accord police and fire
protection to churches (in common with other buildings), to allow a
Bible study group to meet in a public university (in common with other
student groups), /7/ or to allow parents to deduct specified expenses
of educating their children in religious schools from their taxes (in
common with other parents). /8/
On the contrary, to single out petitioner Witters' choice of
vocation would be to discriminate against religion -- to relegate
religion to a disfavored position in the public arena. "(W)e must be
careful, in protecting the citizens * * * against state-established
churches, to be sure that we do not inadvertently prohibit (the State)
from extending its general state law benefits to all its citizens
without regard to their religious belief." Everson v. Board of
Education, 330 U.S. 1, 16 (1947); see McDaniel v. Paty, 435 U.S. at
638 (Brennan, J., concurring).
B. When, For Secular Purposes, The Government Provides Financial Aid
To Individuals On A Facially Neutral Basis, The Individuals' Use Of
That Aid For Religious Ends Or In Religious Contexts Does Not
Constitute An Establishment
One of the most vexing questions in constitutional law has been
when and under what terms religious institutions may participate in or
benefit from public programs of general applicability. Although, as
the Court stated in Roemer v. Board of Public Works, 426 U.S. 735, 746
(1976), "religious institutions need not be quarantined from public
benefits that are neutrally available to all," some of the Court's
most difficult and controversial decisions have been concerned with
how to ensure that government aid provided, for legitimate and secular
purposes, to religious institutions is not used to foster their
religion. See, e.g., Lemon v. Kurtzman, supra; Tilton v. Richardson,
403 U.S. 672 (1971); Committee for Public Education & Religious
Liberty v. Regan, 444 U.S. 646 (1980). The conflict over aid to
parochial elementary and secondary schools has been especially
sensitive, because of the particular danger in that context of
government aid being understood as contributing to religious
indoctrination.
In contrast, the Court has rarely -- indeed, only once, and then in
circumstances far different from these -- found that the Constitution
bars neutral financial aid to individual recipients merely because
they choose to use the aid in religious contexts or for their own
religious purposes. It is "noteworthy that all but one of (the
Court's) recent cases invalidating state aid to parochial schools have
involved the direct transmission of assistance from the state to the
schools themselves." Mueller v. Allen, 463 U.S. at 399. The one
exception is Committee for Public Education & Religious Liberty v.
Nyquist, 413 U.S. 756 (1973), which involved a government aid program
designed exclusively for the benefit of parents with children in
nonpublic schools, rather than a general program for the benefit of
all schoolchildren. /9/
The reasons for this distinction follow directly from the rationale
for the Establishment Clause itself. When government provides
assistance to individuals for secular reasons, it is evident that the
government is not using its resources to prefer one religion over
another, or even religion over nonreligion -- even though some
individuals may make use of the benefit in a religious manner. The
ultimate use and allocation of the benefit will not be determined by
the government, but "only as a result of numerous, private choices of
individual" citizens. Mueller v. Allen, 463 U.S. at 399.
In this respect, the provision of aid here is similar to the tax
deductibility of contributions to religious organizations. Although
tax deductions for contributions undoubtedly confer a substantial
benefit on churches and synagogues -- along with countless other
charitable, educational, scientific, cultural, and historical
organizations -- their constitutionality has never been questioned by
this Court, precisely because the deductions operate to increase the
"diversity and pluralism in all areas" of our society (see Lynch v.
Donnelly, slip op. 8) and facilitate both the free exercise of
religion by believers and similar voluntary associational activities
by their adherents. See generally Walz v. Tax Commission, 397 U.S. at
689 (Brennan, J., concurring).
The State could, if it chose, channel its vocational assistance for
handicapped persons toward careers the State deems appropriate, or
insist that rehabilitative programs be undertaken in educational
institutions operated by the State. However, to leave these decisions
to the individuals involved is an equally permissible approach -- one
which enhances individual choice, increases the diversity of skills
available to society, and widens the range of educational institutions
in the community.
Moreover, when government aid is provided to individuals, as
opposed to institutions, there is no danger of entangling
administrative relationships between government and religious
officials. Other than the relatively routine decision to accredit an
educational institution on the basis of educational quality -- an
administrative relation long held to be constitutional (see Pierce v.
Society of Sisters, 268 U.S. 510, 534 (1925)) -- such an approach does
not involve the government in the affairs of the institution. Cf.
Walz v. Tax Commission, 397 U.S. at 675 ("Obviously a direct money
subsidy would be a relationship pregnant with involvement and, as with
most governmental grant programs, could encompass sustained and
detailed administrative relationships for enforcement of statutory or
administrative standards."). Accordingly, as this Court has recently
observed, "a program * * * that neutrally provides state assistance to
a broad spectrum of citizens is not readily subject to challenge under
the Establishment Clause." Mueller v. Allen, 463 U.S. at 398-399.
Federal government programs are structured in accordance with this
constitutional framework. Generally speaking, when benefits are
provided to individuals, the government does not require that the
individual use the aid for nonreligious purposes or in nonreligious
settings. The very context in which this case arises -- higher
education assistance -- is a prime example. Grants directly to
students, such as Pell Grants or GI Bill benefits, may be used by
those students, if they choose, for education in religious colleges or
for training for church-oriented careers. See pages 2-4, supra. The
federal government does not consider it appropriate, on Establishment
Clause grounds or any other, to limit the freedom of students assisted
under these programs to choose religious alternatives. The test for
providing such benefits should not be whether the student's chosen
course of study is in a school sponsored by a religious group, has
religious content, or leads to a religiously-oriented career, but
whether it leads to a valid "educational, professional, or vocational
objective." See 38 U.S.C. 1670. /10/
On the other hand, when aid is provided directly to institutional
grantees, limitations are often placed on the aid to ensure that it is
used for secular purposes and not diverted to religious ends. See,
e.g., 20 U.S.C. 122 (grants to Howard University may not be used for
the support of the theological department); 20 U.S.C. 1021(c)
(college or research library grants may not be used for written
materials used in sectarian instruction or religious worship); 20
U.S.C. 1070e, 1070e-1 (cost of instruction grants to colleges may not
be used for school of divinity, religious worship, or sectarian
activity); 29 U.S.C. 1517, 1577(a) (Job Training Partnership Act
funds may not be used for religious facilities). /11/
The decision of the court below conflicts with this longstanding
federal practice. Under the Washington Supreme Court's decision, the
government would have to engage in far more searching inquiry into
students' career objectives and courses of study than is now required
-- or even permitted -- under law. A narrow interpretation of the
decision would suggest that the State is forbidden to fund only the
"religious education" of persons intending to become ministers (Pet.
App. A10); although, since petitioner's entire grant was disallowed,
this narrow interpretation may not be correct. /12/ Under the full
force of the Washington Supreme Court's logic, any funding of
religious studies is presumably suspect. Accordingly, the Veterans'
Administration might well be required to insist that its state
approving agencies (see page 3, supra) examine various unit courses
taught at sectarian schools (such as Notre Dame University or
Georgetown University) to determine whether they are religious or
sectarian in nature, and the Department of Education might well have
to require students to certify, as a condition of receiving a student
loan, that they do not intend to enter the ministry. We submit that
it is neither administratively feasible nor constitutionally
appropriate for the government to engage in this type of inquiry. A
neutral program of educational grants such as that now in place is, we
submit, fully consonant with the Religion Clauses of the First
Amendment.
Indeed, this Court has repeatedly distinguished "public assistance
(e.g., scholarships) made available generally without regard to the
sectarian-nonsectarian, or public-nonpublic nature of the institution
benefitted" -- specifically referring to the "G.I. Bill" -- from
impermissible forms of aid. Nyquist, 413 U.S. at 782-783 n.38; see
also Mueller v. Allen, 463 U.S. at 398-399; Wolman v. Walter, 433
U.S. 229 (1977); Wolman v. Essex, 342 F.Supp. 399, 412 n.17 (S.D.
Ohio), aff'd, 409 U.S. 808 (1972). And in Americans United for the
Separation of Church & State v. Blanton, 433 F.Supp. 97 (M.D. Tenn.),
aff'd, 434 U.S. 803 (1977), the Court summarily affirmed a lower court
decision upholding a state statute providing aid to all needy college
students, including but not limited to those in religious colleges.
/13/ The judgment of the Washington Supreme Court is inconsistent with
these decisions.
C. The Court Below Erred In Its "Primary Effects" Analysis By
Focusing On The Religious Use In Isolation Rather Than On The Full
Context Of The Program
The Washington Supreme Court employed the three-part Establishment
Clause analysis of Lemon v. Kurtzman, 403 U.S. at 612-613. See Pet.
App. A5-A6. The court had no difficulty in concluding that the
State's program of vocational assistance to the blind has a legitimate
secular purpose (id. at A6-A7). Cf. Wallace v. Jaffree, No. 83-812
(June 4, 1985), slip op. 17. Moreover, commenting that the
"'entanglement' inquiry is ill-suited to this case," the court stated
that "the administrative and trial court records do not provide an
adequate factual basis to make the type of (entanglement) inquiry
contemplated by the Supreme Court" (Pet. App. A12). The decision
below thus rested entirely on a finding that "the principal or primary
effect of the aid sought by (petitioner) would be to advance religion"
(id. at A10). /14/
In analyzing the "primary effect" of the program, the court stated
(Pet. App. A8):
Rather than look to the face of the rehabilitation statute,
which is neutral in that benefits are provided to the student
irrespective of the type of school attended or the degree
sought, we focus our attention on the particular aid sought by
the (petitioner).
The court accordingly found (id. at A9-A10) that "(t)he provision of
financial assistance by the state to enable someone to become a
pastor, missionary, or church youth director clearly has the primary
effect of advancing religion. * * * It is not the role of the state
to pay for the religious education of future ministers."
This analytical approach is, we submit, fundamentally in error. If
a court focuses solely on the challenged element in an overall program
-- i.e., solely on the religious element -- it will always find that
the "primary effect" is to advance (or inhibit) religion. "Focus
exclusively on the religious component of any activity would
inevitably lead to its invalidation under the Establishment Clause."
Lynch v. Donnelly, slip op. 10. The "crucial question is not whether
some benefit accrues to a religious institution as a consequence of
the legislative program, but whether its principal or primary effect
advances religion." Tilton v. Richardson, 403 U.S. at 679 (emphasis
supplied). To determine whether the religious effect is "primary,"
one must necessarily examine that effect in the context of the program
as a whole. /15/
Here, for example, there can be no claim that the state vocational
rehabilitation program, taken as a whole, runs afoul of the "effects"
test, properly conceived. It is probable that only a tiny fraction of
the beneficiaries use their vocational rehabilitation grants to
prepare for a religious vocation. /16/ Even the court below
acknowledged (Pet. App. A8) that the program is "neutral in that
benefits are provided to the student irrespective of the type of
school attended or the degree sought." The effect of the
rehabilitation program is precisely the same as its purpose: it
provides vocational training to handicapped persons to improve their
job skills and self-reliance. There is no reason to assume that the
benefit to religion from providing aid to otherwise eligible students
for the ministry, to the extent there is any benefit, is other than
minor and incidental.
This Court has never used the analytical approach employed below to
strike down the neutral provision of benefits to a wide spectrum of
beneficiaries. Rather, the Court has used the opposite approach -- to
examine the challenged "effects" in the context of the wider program.
/17/ See, e.g., Mueller v. Allen, 463 U.S. at 397-399 (tax deduction
statute available to all parents of schoolchildren, including those
with children attending sectarian private schools); Widmar v.
Vincent, supra (access to university facilities by all student groups,
including religious groups); Tilton v. Richardson, 403 U.S. at 687
(construction grants for higher education facilities generally); Walz
v. Tax Commission, supra (tax exemptions for all educational and
charitable non-profit institutions); Board of Education v. Allen, 392
U.S. at 242 (textbook loans to all schoolchildren); Everson v. Board
of Education, 330 U.S. at 16 (bus fare extended to all
schoolchildren). In any of these instances, the Washington Supreme
Court's analysis would have led to invalidation of the program.
The State's vocational rehabilitation program involved in this case
has all the traditional indicia of a secular government assistance
program with a secular primary effect. The program is neutrally
designed to provide aid to all persons who fall within the class of
beneficiaries -- the visually handicapped. Contrary to the Washington
Supreme Court's view, a program that assists a broad class of
beneficiaries without regard to religion does not violate the
Establishment Clause merely because one, some, or even many of the
beneficiaries happen to be religious. "The historic purposes of the
(Establishment Clause) simply do not encompass th(is) sort of
attenuated financial benefit (to religion), ultimately controlled by
the private choices of individual" beneficiaries. Mueller v. Allen,
463 U.S. at 400.
D. This Court Need Not, And Should Not, Consider The Remaining Issues
In The Case
The sole basis for the decision below was the Establishment Clause
of the First Amendment. This rationale had not been advanced by
respondent before the Washington Supreme Court or at any other stage
in the litigation. The theory most vigorously pressed by respondent
was that the provision of aid to petitioner for his education for the
ministry would violate the State's equivalents to the Establishment
Clause, Wash. Rev. Code Ann. art. 1, Section 11; art. 9, Section 4
(1966). The court below found it "unnecessary to address the
constitutionality of the aid under our state constitution" (Pet. App.
A2). The court did, however, strongly hint that it would find the aid
unconstitutional under the state constitution, commenting that "our
state constitution requires a far stricter separation of church and
state tha(n) the federal constitution" (ibid.).
If the state constitution is held to prohibit aid to petitioner's
education, that holding will raise serious and difficult questions of
federal statutory and constitutional law, which have not been
addressed by the lower courts. Specifically, it will raise the
question whether petitioner is entitled to participate in the program
under the terms of the federal grant to the State, and, if so, whether
the State is permitted under the program to attach more stringent (and
arguably discriminatory) eligibility criteria than those adopted by
Congress and the Secretary of Education. See 29 U.S.C. 721(a)(5)(A).
Moreover, assuming that there is no federal statutory bar to excluding
petitioner from the program, such an interpretation of the state
constitution would raise the question whether petitioner's rights
under the Equal Protection Clause or the Free Exercise Clause would be
infringed by a ruling that church-oriented careers alone are excluded
from the benefits of the program. That question, not dissimilar to
the issues raised in Board of Trustees v. McCreary, No. 84-277 (Mar.
27, 1985) (equally divided Court); Widmar v. Vincent, supra;
McDaniel v. Paty, supra; and Sherbert v. Verner, 374 U.S. 398 (1963),
is substantial, and the Supreme Court of the State of Washington
should have an opportunity to consider the question in the first
instance. Although that court has considered, and rejected,
petitioner's free exercise argument (Pet. App. A14-A17), it did so on
the assumption that the Establishment Clause would be violated by a
grant of the vocational rehabilitation benefits. If there are no
countervailing federal constitutional considerations, the argument may
appear in a different light. Moreover, the court expressly declined
to address petitioner's "novel" equal protection claim because the
Establishment Clause holding made resolution of that claim unnecessary
(id. at A16-A17).
There is no need for this Court to grapple with these issues in the
current posture of the case, unassisted by the views of the courts
below. Although the Washington Supreme Court has adumbrated its
likely answer to the question whether the state constitution would be
violated by a grant for the support of petitioner's vocational
education, the court expressly declined to decide the issue in a
formal sense. This Court should not address the sensitive question of
the compatibility of a state's constitution with the federal
constitution in the absence of a definitive interpretation of the
state constitution. Moreover, the state courts have not explained the
basis and rationale for the state constitutional provision. It would
therefore be difficult to evaluate whether the distinctions drawn by
the State would pass muster under the Equal Protection Clause or be
sufficiently compelling to outweigh petitioner's free exercise rights.
Accordingly, we urge the Court to confine its consideration to the
Establishment Clause holding of the court below, and allow the parties
to raise any other issues on remand, if the judgment is reversed.
CONCLUSION
The judgment of the Supreme Court of the State of Washington should
be reversed.
Respectfully submitted.
CHARLES FRIED
Acting Solicitor General
RICHARD K. WILLARD
Acting Assistant Attorney General
MICHAEL W. MCCONNELL
Assistant to the Solicitor General
ANTHONY J. STEINMEYER
MICHAEL JAY SINGER
Attorneys
JUNE 1985
/1/ In addition, the VA administers a program under 38 U.S.C.
1500-1521, which provides support to veterans with substantial
service-related disabilities, including blindness, by financing
training, employment, and medical and sociological services. Under
this program, unlike those discussed in text, the VA may itself select
and approve the training facility, and it pays the costs of tuition,
fees, books, and other related items directly to the facility;
subsistence payments are made directly to the veteran. As under the
other programs, however, benefits under 38 U.S.C. 1500-1521 may be
used for study in religiously-affiliated institutions and for courses
of study leading to church-oriented careers.
/2/ The Department of Services for the Blind was formerly called
the Commission for the Blind, and is so denominated in the opinions
below. See Pet. App. A1 n.1.
/3/ We are informed by the Department of Education and the
Veterans' Administration that Whitworth College is a participating
institution under student aid programs administered by the Department
and has been approved for GI Bill purposes as an institution of higher
learning. Courses at the Inland Empire School of Bible have been
approved for GI Bill purposes as non-college degree courses, but the
School does not have a participation agreement with the Department of
Education. (This does not mean that the School is ineligible; it may
have chosen not to participate.)
/4/ Madison's famous Memorial and Remonstrance (see Everson v.
Board of Education, 330 U.S. 1, 12 (1947) is not to the contrary. The
subject of the Memorial and Remonstrance was a proposal before the
state legislature to make "provision for Teachers of the Christian
Religion" (Memorial and Remonstrance, reprinted in full at 330 U.S. at
63-72 (emphasis supplied)), which Madison understood as a preference
for "Christianity, in exclusion of all other Religions" (id. at 65).
Central to Madison's argument in the Memorial and Remonstrance was
that the proposal "violates equality by subjecting some to peculiar
burdens; so it violates the same principle, by granting to others
peculiar exemptions" (id. at 66). The vice in the proposal, in other
words, was that it preferred one religion over the others.
The weight of the historical evidence indicates that the Memorial
and Remonstrance reflects a more strictly separationist view than that
espoused by Madison in Congress in connection with the Establishment
Clause (which he is fact deemed unnecessary (1 Annals of Cong., supra,
at 758)), and that Madison's views, in turn, were more radical on this
issue than Congress and the States were willing to accept (hence the
compromise language of the First Amendment). See, e.g., C. Antieau,
A. Downey & E. Roberts, Freedom From Federal Establishment 126-142,
197-198 (1964); M. Malbin, Religion and Politics 16-17 (1978); see
also R. Cord, Separation of Church and State 20-36 (1982).
Nonetheless, nondiscriminatory aid of the sort at issue here is
consistent even with the views expressed in the Memorial and
Remonstrance.
/5/ Indeed, one of the reasons stated for land grants for
educational purposes was to provide support for "(r)eligion, morality,
and knowledge." See Northwest Ordinance, ch. VIII, art. III, 1 Stat.
52.
/6/ Government nonetheless may accommodate or facilitate the
practice of religion in ways not equally applied to non-religious
activities. So long as such accommodations are neutral among
religions, neither induce nor coerce religious beliefs, and are
administered in a way that does not interfere with the autonomy of
religious institutions, they are constitutional. See, e.g., NLRB v.
Catholic Bishop of Chicago, 440 U.S. 490 (1979); Wisconsin v. Yoder,
406 U.S. 205 (1972); Gillette v. United States, 401 U.S. 437 (1971);
Zorach v. Clauson, 343 U.S. 306 (1952). Such accommodations do not
establish a religion, but -- in keeping with the special status of
religion in the Constitution itself -- accord special treatment to the
liberty of religious exercise. See McDaniel v. Paty, 435 U.S. 618,
639 (1978) (Brennan, J., concurring). This case involves only equal
treatment -- not preferential accommodation -- of religion.
/7/ Widmar v. Vincent, supra; see also Bender v. Williamsport Area
School District, cert. granted, No. 84-773 (Feb. 19, 1985).
/8/ Mueller v. Allen, supra.
/9/ See also Lemon v. Kurtzman, 403 U.S. at 621, in which the Court
distinguished Everson and Board of Education v. Allen, 392 U.S. 236
(1968), on the ground that in those cases the "state aid was provided
to the student and his parents -- not to the church-related school";
Committee for Public Education & Religious Liberty v. Nyquist, 413
U.S. at 781; Walz v. Tax Commission, 397 U.S. at 675.
/10/ The only provision of which we know that might be considered
an exception is 20 U.S.C. 1134e(g). The Secretary of Education is
authorized to make grants to institutions of higher education so that
those institutions may "mak(e) available the benefits of
post-baccalaureate education to graduate and professional students who
demonstrate financial need." 20 U.S.C. 1134d. Following provisions
setting out priority categories for institutions and individual
students (see 20 U.S.C. 1134e(d) and (e)), Section 1134e(g) provides
that "(n)o fellowship shall be awarded under this part for study at a
school or department of divinity."
/11/ Restrictions applicable to Rehabilitation Act grants, which
presumably are the source of federal funding for the program at issue
here, are of this sort. In general, Department of Education
regulations preclude grants to institutional entities when such
entities would use them for religious purposes, but place no such
restrictions on facially neutral grants to individuals. Certain
multi-program regulations now applicable to the Rehabilitation Act
program prohibit the use of funds for "(r)eligious worship,
instruction, or proselytization" (34 C.F.R. 76.532(a)(1)) or for "(a)n
activity of a school or department of divinity" (34 C.F.R.
76.532(a)(4)). These regulations are based on the Department's
interpretation of constitutional requirements. The Department has
informed us that it interprets these restrictions as applying to
grants to institutional grantees and subgrantees, but not as
precluding individuals who may be the ultimate beneficiaries of
financial assistance under this program from using it for vocational
training in a school of divinity. The funds could not, for example,
be granted to a university to make its divinity school accessible to
the handicapped, but a scholarship grant under the program could be
used by a handicapped individual to defray the cost of education at a
divinity school.
The multi-program regulations quoted above became applicable to the
Rehabilitation Act program only in 1981 (after petitioner applied for
and was denied benefits), after responsibility for administration of
the program was transferred to the Department of Education. At the
time of petitioner's application, grants under this program had no
specific restrictions regarding religious uses.
/12/ Some of petitioner's course work -- e.g., speech instruction
(see page 6, supra) -- is apparently secular in nature.
/13/ In Bob Jones University v. Johnson, 396 F.Supp. 597 (D.S.C.
1974), aff'd, 529 F.2d 514 (4th Cir. 1975), the court held that while
the receipt by students of GI Bill benefits constituted federal
financial assistance to the church-affiliated university involved in
that case for purposes of the civil rights laws, it did not constitute
unconstitutional state aid for purposes of the Establishment Clause.
Cf. Grove City College v. Bell, No. 82-792 (Feb. 28, 1984), slip op.
8, 10 n.15, citing Bob Jones University v. Johnson, supra. The
reasons advanced by the government and adopted by the Court in Grove
City College for treating student grants as aid to the institutions
for purposes of Title IX of the Education Amendments of 1972 derive
from the statutory objectives and unambiguous legislative history.
See slip op. 7-13. The constitutional standard for judging whether
the "primary effect" of a program is to "advance religion," which
serves far different purposes, is not the same as that adopted by
Congress under Title IX for determining when an institution must
comply with laws against discrimination.
/14/ If this Court reverses on the "primary effect" finding, and
respondent chooses to litigate the issue of "'entanglement'" on
remand, it should be free to do so. As the court below recognized
(Pet. App. A12), the factual record is insufficient to support a
finding of unconstitutionality on this ground, and further
fact-finding might be in order. On the merits we submit, however,
that the program at issue plainly does not entail an excessive
entanglement between church and state. The only direct relationship
involving the government is that with petitioner Witters; the
government is not involved in overseeing or regulating the religious
institutions at which petitioner has studied.
/15/ The approach of the court below would be sound only if the
Establishment Clause were held to prohibit any government action, the
ultimate effect of which is to benefit religion -- a view that has
been consistently rejected by this Court. McDaniel v. Paty, 435 U.S.
at 638 (Brennan, J., concurring); Hunt v. McNair, 413 U.S. 734,
742-743 (1973); Everson v. Board of Education, 330 U.S. at 16.
/16/ In this respect, the instant case is less troublesome than
Mueller. In Mueller, the evidence suggested that the "bulk" of the
benefits involved would flow to religious uses, partly because 96% of
the children in private schools attended religiously-affiliated
institutions. 463 U.S. at 401.
/17/ The court below relied for its approach on a statement in Hunt
v. McNair, 413 U.S. at 742, that under the "effects" inquiry a court
must "narrow (its) focus from the statute as a whole to the only
transaction presently before us." See Pet. App. A8. However, in Hunt,
the Court upheld the program even on that narrow basis, making it
unnecessary to consider alternative bases for a finding of
constitutionality. The decision there provides no warrant for
invalidating a program where, under the full context of the program,
the "primary effect" is not to advance or inhibit religion.